Either Edward Snowden Is Lying—or His Former Boss Is

How much did the NSA leaker really know about the agency’s surveillance? Snowden and the man who supervised him are making radically different claims.

09.17.16 1:13 AM ET

IMDb

Either Edward Snowden is lying or his former boss is. That’s one way to read contradictory statements from the two men about whether Snowden actually knew that much about one of the most controversial surveillance programs that he exposed to the world three years ago.

It’s a program that gives the National Security Agency access to data from the world’s biggest technology companies, including Facebook and Google, and it features prominently in the new Oliver Stone biopic “Snowden,” which premieres Friday and portrays its namesake as a genius hacker who saw first-hand how the NSA abused its formidable powers. That movie has renewed a long-simmering battle between Snowden and his critics. And it’s revealing new information about the biggest leak from the U.S. intelligence community in decades.

For the first time, the man who hired Snowden as a contractor for Booz Allen Hamilton at an NSA facility in Hawaii said Snowden actually didn’t have any access to that program, known commonly as PRISM. What’s more, Steven Bay said, Snowden failed to understand the regime of oversight and legal scrutiny in place to prevent unauthorized spying on Americans.

“He asked me two or three times on how to get access to what essentially was the PRISM data—we didn’t call it that internally, but that’s kind of what everyone knows it is,” Bay told the national security publication The Cipher Brief this week. (The interview came days before a blistering report by the House Intelligence Committee that appeared timed to sully Snowden’s reputation in advance of the movie’s release. Snowden vehemently rebutted the report on Twitter.)

“That’s one of the interesting things about his story is that people don’t realize,” Bay continued, “he never actually had access to any of that data. All of the quote domestic collection stuff that he revealed, he never had access to that. So he didn’t understand the oversight and compliance, he didn’t understand the rules for handling it, and he didn’t understand the processing of it.”

Perhaps. But in testimony to the European Parliament in 2014 (PDF), Snowden made crystal clear that he knew first-hand about the NSA’s inner workings. It’s that experience, and Snowden’s resume in the intelligence community, that has helped to transform him from a simple leaker of classified documents into the most famous critic of global surveillance, and a man that journalists, lawmakers, and now a Hollywood director have relied on to explain how the global surveillance system really works.

“The NSA granted me the authority to monitor communications worldwide using its mass surveillance systems, including within the United States,” Snowden told lawmakers investigating his disclosures, which also showed the NSA has monitored the cell phone of German Chancellor Angela Merkel. “I have personally targeted individuals using these systems under both the President of the United States’ Executive Order 12333 and the US Congress’ FAA 702,” the section of surveillance law that governs the PRISM program.

“I know the good and the bad of these systems,” Snowden continued, “and what they can and cannot do, and I am telling you that without getting out of my chair, I could have read the private communications of any member of this committee, as well as any ordinary citizen. I swear under penalty of perjury that this is true.”

Plenty of experts with unassailable credentials have criticized NSA operations in the same manner as Snowden. And there’s no doubt that the information he exposed triggered the most significant public debate about global surveillance in a generation. His leaks led to changes in law and rulings from courts that at least some NSA programs were illegal.

But it’s Snowden’s description of his own knowledge and experience that Bay said motivated him to reveal what he believes is the more accurate version of Snowden’s time inside the world’s most powerful intelligence agency.

“I get frustrated by things like people considering Ed an expert in all things NSA, even though he was kind of a junior analyst and had a relatively junior role there,” Bay said. “He’s not the foremost expert on this stuff. He’s a smart guy, don’t get me wrong, and he had experience, but he wasn’t some senior level person… He didn’t understand the programs. He didn’t understand the oversight.”

Reconciling Bay and Snowden’s statements isn’t easy. Through his attorney, Snowden declined to comment for this article, and Bay didn’t respond to requests for an interview.

Get The Beast In Your Inbox!

Daily Digest

Start and finish your day with the top stories from The Daily Beast.

Cheat Sheet

A speedy, smart summary of all the news you need to know (and nothing you don't).

You are now subscribed to the Daily Digest and Cheat Sheet. We will not share your email with anyone for any reason.

But the findings of investigations into Snowden’s leaks, as well as interviews with other people who either worked with Snowden or helped to assess the fallout from his disclosures, shed some more light on both claims.

First, there’s the question of what access Snowden really had to the PRISM program, authorized by section 702 of the Foreign Intelligence Surveillance Act. On Thursday, the House Intelligence Committee released the unclassified version of its investigation into Snowden’s leaks and his career in the intelligence community, which found that “he failed basic annual training for NSA employees on Section 702…”

That basic training consists of a test, which is “open book” and not timed. An employee is shown a series of slides pertaining to NSA’s authorities under the law and the agency’s obligations to restrict or “minimize” access to certain information about U.S. citizens in order to protect their privacy. The employee is then asked a series of questions about what he just saw in the slides.

If an employee doesn’t pass the test, he cannot have access to 702 surveillance programs. According to internal NSA emails obtained by Vice under the Freedom of Information Act, in April 2013 Snowden failed the test and then complained to an official with the agency’s compliance division that the test asked “trick questions.” Snowden was told that’s not how the test is designed, and that if he failed, he could take it again.

It’s not clear from the emails if Snowden took the test again. But if Bay’s comments are to be believed—that Snowden never had access to 702 data—it seems unlikely that he did. The job for which Bay hired Snowden was the last one he held before removing classified material from the NSA facility in Hawaii, one month after he complained about the test.

Of course, it’s possible that Snowden knew enough about the kinds of surveillance under 702 to have concerns about it. After all, he was quizzed on the authorities when he took that test. And the fact that surveillance was conducted under the law was not a secret. The 2008 amendment of existing surveillance law, which led to the creation of section 702, involved spirited, public debates between intelligence officials, lawmakers, and civil liberties advocates over the appropriate scope of surveillance authorities.

While the inner workings of 702 surveillance were classified, the fact that it existed, and that it involved gathering personal communications from technology companies, was not. At the time the law was passed, many critics, including those with whom Snowden is now aligned, said the new law authorized unconstitutional surveillance against U.S. citizens.

Section 702 wasn’t the only thing Snowden leaked about. He also revealed details about how the NSA conducts surveillance on computers in foreign countries, which, he has said, pertained to his work on cyber operations targeting China. (In the “Snowden” film, he is working on counterintelligence operations, essentially hacking Chinese hackers who are trying to penetrate computer networks in the United States.)

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” Snowden told the South China Morning Poston June 12, 2013, after he had fled Hawaii and landed in Hong Kong. “That is why I accepted that position about three months ago.”

This goes to another core element of Snowden’s narrative—that he was a highly-skilled technical expert working on sensitive intelligence operations. There’s no dispute that Snowden did have a higher-than-average level of proficiency with computers.

“His resume came across, it looked solid, and it had a lot of the good technical things I was looking for,” Bay told The Cipher Brief. “When we interviewed him [in February 2013], we had a set standard of questions, technical questions, that we asked. And we asked most of those questions and it was pretty evident early on that the questions were very simple for him.”

“He knew his stuff,” Bay said. So he offered Snowden the job.

But a super hacker he was not, another ex-NSA employee—one who oversaw Snowden’s work in Hawaii—told The Daily Beast.

“Multiple times he applied to become an operator within TAO,” or Tailored Access Operations, the NSA’s highly secretive and elite offensive hacking outfit, “but we denied him because he didn’t have the technical acumen,” the former employee said, speaking on condition of anonymity. The interview was conducted before Bay made his public remarks about Snowden.

“He wasn’t the brightest person, but he knows a lot about cryptography and can speak about technology,” the former employee said. But, he added, knowing “10 percent more than the average person” doesn’t qualify you as an expert in the NSA’s eyes. Snowden didn’t have the requisite level of expertise to work on missions exploiting foreign computer networks, which is the job he wanted to do, the former employee said.

The former employee noted that in Hawaii, Snowden did work on operations involving China. But, he said, his role was as a junior analyst, and that he played a supporting role to other more senior personnel.

On the question of expertise, the House Intelligence Committee gave Snowden a harsh assessment, calling him a “serial exaggerator and fabricator” who “doctored his performance evaluations and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test.” The committee offered no evidence to back up those claims, at least in this unclassified version of its report.

Snowden also refuted the committee’s characterization that he began downloading documents, which it said eventually totaled 1.5 million, months before congressional testimony by Director of National Intelligence James Clapper that the U.S. didn’t collect large amounts of information on U.S. citizens. Snowden’s leaks about the NSA’s collection of Americans’ phone records eventually showed Clapper wasn’t telling the truth.

The committee seems to suggest that Snowden began his plan to reveal classified information long before the time of Clapper’s testimony. But Snowden says he was actually downloading information as part of a NSA-approved program, called Heartbeat. In the “Snowden” movie, Heartbeat is portrayed as Snowden’s creation, a kind of master index of the many surveillance operations that the NSA was running. That suggests that Snowden may well have had sufficient access at least to know about the programs the NSA was running, even if he wasn’t privy to the information they were generating.

On Twitter, Snowden said the Heartbeat program was approved by “two levels of my management” and that “I built it.” The House Intelligence Committee, however, found no evidence to corroborate that claim, according to a congressional staffer with knowledge of the committee’s inquiry.

Ultimately, it wasn’t Snowden’s technical expertise or his knowledge of surveillance law that allowed him to abscond with classified information. The NSA had failed to install equipment and policies that may have helped to detect what Snowden was doing. The physical removal of those files also hardly required the skills of a high-end hacker.

But in the aftermath of that event, Snowden became the most visible commentator about the information he stole, and his own description of his resume, his access, and his technical knowledge have solidified his reputation as an expert who is qualified to talk with nuance about the NSA’s operations.

It’s that expertise that’s now being questioned, and it’s no accident that the House Intelligence Committee chose to release its findings one day ahead of the movie premiere. Snowden is now getting the Hollywood treatment in the next stage of his career as a public figure. The counter-offensive against him will be more forceful than ever.